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Why we have no “constitutional” rights

Why we have no“constitutional” rights

By John Silveira

Issue #92 • March/April, 2005

The other day I read an article concerning a suit brought against the government by some of the 550 or so detainees at the naval station at Guantanamo Bay, Cuba. The litigants’ complaints include the use of “evidence” obtained by torture which their attorneys claimed violated fairness and due process. Our government’s position, stated by Principal Deputy Associate Attorney General Brian Boyle, is that the detainees “have no constitutional rights enforceable in this court.” I read those words and my first thought was, “Of course they don’t have constitutional rights because there’s no such thing as constitutional rights in this country.”

Our rights are not constitutional rights. Our Founding Fathers never intended them to be. They set this country up with the understanding that our rights are God-given or natural. They are not gifts from the government; they are not granted by the Constitution. On the other hand, there are constitutional rights in Canada, the United Kingdom, France, Russia, and a host of other countries. And in those countries both the people and the governments consider their rights to be gifts from the government and subject to government approval. The United States is the only country in all of history set up with the philosophy that rights are separate from and not dependent upon the government.

Nowhere does the Constitution say we are being granted rights. When rights are mentioned, it says only that the government cannot deprive us of them. And nowhere does it say our rights are peculiarly American rights. In fact, the Declaration of Independence specifically says…that all men are created equal, that they are endowed by their Creator with certain unalienable Rights… That, folks, is the philosophical and legal basis of this country.

Why, then, do we even have a Bill of Rights in our Constitution? The Federalists—Hamilton, John Adams, etc., didn’t want one because they feared not only would any rights not included be denied, but that the government would then begin acting as if the government itself, and the Constitution in particular, would be viewed as the source of our rights. The Democrats—Thomas Jefferson, George Mason, and others wanted a Bill of Rights because they feared that without it the government would eventually assume our rights didn’t exist. Part of the compromise to make sure “unenumerated rights” were not ignored was the Ninth Amendment. It specifically says, The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The bad news is that history has shown that the fears of both Federalists and Democrats have come to be realized: bureaucrats (including government lawyers), congressmen, presidents, and even the courts spend an incredible amount of time, effort, and your money trying to circumvent the one thing that makes the United States unique in history. They have come to the view:

any right not specifically mentioned in the Bill of Rights is nonexistent.

the rights that are mentioned are pliable.

the Ninth Amendment is dead.

and worst of all:

the government or the Constitution is the source of our rights.

That’s how other countries treat rights, and we are becoming more and more like the rest of the world.

What are we fighting for?

We claim to be fighting in places like Afghanistan and Iraq for freedom. Then let’s exercise that freedom. If the government believes those they hold at Guantanamo are a threat, let them have their day in court. Make the government close what is in essence the same type of concentration camp in which we held Japanese-Americans during World War II. Let the government make its case against the detainees in front of the American people and the world. And those among the prisoners they can prove guilty? Imprison them, shoot them, or whatever else must be done with them. Then let the others go. It’s not just the rights of those at Guantanamo I’m concerned with, but the rights that our Founding Fathers said belong to us all.

If we don’t put a stop to these government abuses, if we don’t change their mindset, if we refuse to draw a line in the sand, we are going to wake up one day and find all our “God-given” rights gone. What will be left are the rights the politicians and bureaucrats want us to have, rights they can rescind anytime they find them inconvenient, rights that are nothing more than privileges, like the kind other governments let their citizens have. If we keep allowing abuses such as happened to Japanese-Americans during World War II and now to detainees at Guantanamo, one day it will dawn on us that we too no longer have our God-given rights but only those rights the government currently allows the prisoners at Guantanamo—none at all.

And to do this, not one word of the Constitution or the Declaration of Independence will have to be changed—they just have to be ignored.